East European Quarterly Vol. 43, No. 1, pp. 111-128, March 2015 © Central European University 2015 ISSN: 0012-8449 (print) THE 2014 REFERENDUM IN CRIMEA Olena Podolian Department of Political Science Baltic and East European Graduate School Södertörn University Outline The “referendum” in Crimea held on 16 March 2014 fulfilled the criteria of neither legality nor legitimacy. The “referendum” was conducted in breach of Ukraine’s domestic, bilateral (Ukraine-Russia) and international legal frameworks. The procedure for the preparation and conduct of the “referendum” on the day, including its international observation, was entirely inadequate. The “referendum” cannot be considered as a legitimate expression of popular will due to the violation of the criteria of free and fair voting and due to the actual number of voters and their choices being unknown. The “referendum” creates a precedent of illegal irredentism in interstate politics and a violation of international law. This note provides an analysis of the legality and legitimacy of the so-called referendum on the status of Crimea held on 16 March 2014. It is argued that the “referendum” fulfilled neither criteria and hence cannot be considered either as legally valid or legitimately representative of public opinion. In conclusion the following points are made: first, a standpoint in both the Russian and Western mass-media of interpreting the “referendum” as a proxy for an opinion poll is misguided. Second, the “referendum” undermines political stability in Ukraine and beyond as it sets a precedent for illegal irredentism portrayed as democratic process. Author’s correspondence e-mail: [email protected] The 2014 referendum in Crimea Background and legal framework Crimea is an autonomous republic situated in the south of Ukraine. Geographically a peninsula, it was acquired by the Russian Empire from the decaying Ottoman Empire in 1783 (Taagepera 2014) and in 1922 it was incorporated into the Soviet Union. In 1954, on the basis of the Soviet Constitution of 1936 (Article 18), through a decision of the Presidium of the Central Committee of the Communist Party of the Soviet Union of 25 January 1954, given effect by a resolution of the Soviet Supreme Council of 19 February, the then Crimean Oblast’ was transferred from the then Russian Federative to the then Ukrainian Soviet Socialist Republic, of which Ukraine is a direct successor.1 Following the collapse of the Soviet Union and the declaration of independence by Ukraine on 24 August 1991, Crimea became the Autonomous Republic of Crimea within a unitary Ukrainian state. Crimea further demanded and, following a tense stand-off with Kyiv between January 19942-1995 under the presidency of Leonid Kuchma and with the involvement of OSCE (Stern and Druckman 2006), finally received the status of an autonomous region fixed in the Constitution of 28 June 1996. This autonomy implies its own constitution, parliament and government. However, these institutions remain subordinate to the Constitution, Parliament and President of Ukraine (according to the Articles 85(28), 85(37) and 106(16) of the Constitution of Ukraine). The Crimean Tatars, indigenous people of Crimea, are represented by their own highest representative body, the Qurultai, and its executive body, the Mejlis. As a result of the Russian Empire’s and the Soviet Union’s nationalities policies, Crimea has a complex demographic history. In the aftermath of these policies, including the long-term genocide of Crimean Tatars culminating in their large- scale deportation to Central Asia in May 1944 (Moser 2014), Crimean Tatars 1 This fact is often represented as a decision by an allegedly “drunken Khrushchev” based on his nationalist sentiments (Lewycka 2014). This is incorrect as the rationale behind that decision was complex: it included territorial continuity, infrastructural and overall economic integration, and the need to consolidate Soviet power after the annexation of Western Ukraine (Kramer 2014). Also, the Crimean Oblast’ was transferred to the Ukrainian Soviet Socialist Republic following a transfer in 1924 of some of that republic’s south-eastern territories to the Russian Soviet Federative Socialist Republic (Bayley et al. 2012, p. 654). 2 When the nationalist-minded Russian Yurii Meshkov was elected president and demanded independence, he ran into a political standoff with the Presidium of the Crimean Supreme Council by September 1994 on the basis of violating both Crimea’s and Ukraine’s legislation. 112 Olena Podolian (recently estimated at 12% of the peninsula’s population) became the third largest nationality after Russians (recently estimated at 58.3%) and Ukrainians (recently estimated at 24.3%); and 6% of population is comprised of other nationalities: Belarusians, Tatars, Armenians, Jews, Poles, Moldovans, Azeris and others, according to the national census of population of 2001.3 Despite the historic and demographic complexities of Crimea and the turbulent political scene of the rest of Ukraine, Crimea’s institutional framework functioned until 23 February 2014. On that day, after the flight of President Viktor Yanukovych and the change of government following the three-month long Maidan protests, troops without insignia occupied administrative buildings in Crimea, blocked Ukrainian military bases there and on 6 March 2014 the Crimean Parliament made a decree “About the conduct of an all-Crimean referendum” on 16 March 2014.4 A consideration is now made of the legal grounds for such a referendum to take place: domestic, bilateral (i.e. between Ukraine and Russia) and international. The domestic legal framework was based on the Constitution of Ukraine. An alteration to the territory of Ukraine may only be decided exclusively by a national referendum, initiated for this purpose by the Parliament of Ukraine, Verkhovna Rada, according to the Constitution (Article 73) and to the Law of Ukraine “On the national referendum” of 2013 (Articles 3(2), 14). In the same law the procedure for organizing such a referendum is outlined, which, among other things, provides for a period of 50 days for its preparation (Article 27).5 On this basis alone, the decision by the Crimean Supreme Council to hold a referendum was legally null and void. Furthermore, it violated international legal frameworks: both bilateral, between Ukraine and Russia, and international. Crimea can only organize local referenda (Article 138 of the Constitution of Ukraine). Therefore, the “referendum” of 16 March 2014 was unconstitutional. According to legal experts’ estimates, Russia’s recognition of Ukraine’s borders inherited from the Soviet Union, including Crimea, was clear and unambiguous. It was secured in such bilateral treaties as the Belovezhskaya Pushcha Accords of 8 December 1991 on the dissolution of the Soviet Union, the Alma Aty Declaration of 21 December 1991 on the establishment of the Commonwealth of 3 About the number and composition population of Ukraine by data All-Ukrainian population census’ 2001 data. 4 Postanovlenie VR ARK “O provedenii obshchekrymskogo referenduma,” March 6, 2014. 5 Zakon Ukrayiny “Pro vseukrayins’kyi referendum,” November 6, 2012. 113 The 2014 referendum in Crimea Independent States, and the Treaty on friendship, cooperation and partnership between the Russian Federation and Ukraine of 31 May 1997 (Weller 2014). The international legal framework of interstate relations covers: (1) prohibition of the use of force against the sovereignty, territorial integrity or political independence of any state, based on which the use of foreign armed forces on the territory of a state is defined as amounting to aggression regardless of a declaration of war and the type of presence (invasion, attack, occupation, annexation, blockade, contravention of the agreement governing foreign troops’ presence or sending irregulars), according to the United Nations (UN) General Assembly Resolution of 1974 (Article 3); (2) sovereign equality, refraining from the threat or use of force, inviolability of frontiers, territorial integrity of states, peaceful settlement of disputes, and non-intervention in internal affairs, according to “Helsinki Final Act OSCE” of 1 August 1975; (3) specifically for Ukraine, security guarantees on the political independence, sovereignty and territorial integrity of the country within its existing borders in exchange for nuclear weapons’ disarmament according to the Budapest Memorandum of 5 December 1994, signed by Ukraine, the Russian Federation, the United Kingdom and the United States, and by France and China in individual statements, following Ukraine’s accession to the Treaty on the Non-Proliferation of Nuclear Weapons.6 Those guarantees were reaffirmed by the United States and Russia in the Joint Declaration of 2009 (Burlyuk 2014). Campaign From a sociological point of view, there was no history of significant support for independence of Crimea or for joining the Russian Federation among public opinion in Crimea (Bohm 2014). An evaluation of preferences of Crimea’s Russian population as largely moderate and more likely to support the status quo than secession was predominant in diplomatic as well as in academic circles (Aronov 2014; Burlyuk 2014). 7 6 Following the dissolution of the Soviet Union, Ukraine inherited the world’s third largest stockpile of nuclear weapons. 7 Differing opinions were present as well. As summarized by the political analyst Oleksandr Sushko shortly before the “referendum,” “There is turbulence and there are differences